Herhold: A model's death raises questions about online legacy

On Dec. 20, 2008, a stunningly beautiful young model named Sahar Daftary fell to her death from the 12th-floor balcony of a waterfront high-rise in Manchester, England.

Eager to find out more about why she died -- they were not convinced it was suicide -- her family sued Facebook in a San Jose court to get access to her messages.

A federal magistrate rejected the suit in September. But the repercussions of the case and others like it continue to shape the public debate.

The Wall Street Journal did a long page-one piece about the issue a couple of weeks ago. Fundamentally, the question is this: Can you take online secrets to the grave?

I recognize the dubiousness of the idea that anything on Facebook is secret. And I'll leave the legal arguments to people better versed in state and federal law.

On the basic question, with some trepidation, I have to answer yes -- the messages should stay secret. Two reasons persuade me.

First, we don't know what the 23-year-old Daftary would have wanted. In her absence, we have to err on the side of protecting her privacy.

Second, there are other options for dealing with an online legacy. You can give a password to a trusted friend. You can put it in a will.

Curiosity

Daftary, a Briton of Afghan descent who won the "Face of Asia'' beauty contest, married a property developer in a 2007 Muslim ceremony that was not recognized by civil authorities.

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The relationship soon foundered. The family claimed Daftary had discovered that the man she married, Rashid Jamil, 33, was married to another woman and had three children by her.

The young model became increasingly restive. On the day she died, she reportedly went to Jamil's high-rise apartment in Manchester to retrieve belongings. According to news reports, Jamil was present while Daftary was there.

Believing that she would not have killed herself, the family sought her Facebook messages in a civil motion. A coroner's inquest in England heard testimony that Daftary planned a trip to Dubai and believed her email had been hacked.

The federal magistrate in San Jose, Paul Grewal, ruled that the federal Stored Communications Act did not require Facebook to produce the messages.

Common sense

While Grewal cited legal reasons, you can understand the common-sense thinking behind the law.

What if a young woman dies unexpectedly after sending Facebook messages that chastise her parents? What if she never expected those messages would ever be public? Should that be her coda to her family?

Yes, I know that many people believe that anyone using Facebook should assume that everything is public. No online company, however, can operate that way. Facebook has to offer a safe harbor for private communication.

If states craft laws that give survivors access to more of the online legacy of the deceased, we'll have a patchwork of law. It's better that we preserve the current federal requirement of a government or law enforcement order before release.

However much we sympathize with Daftary's family, the release of her Facebook messages will create more problems than it will solve. The right of privacy doesn't disappear when we die.